Correa v. Grossi, 458 N.J. Super. 571 (App. Div. 2019). Multiple pieces of related legislation can be inconsistent, and courts are called on to harmonize them using classic principles of statutory interpretation. Today’s opinion by Judge Reisner applied de novo review to the purely legal issues involved and reached a commonsense result in reconciling facially conflicting election law statutes.
By virtue of a 1974 amendment, N.J.S.A. 19:23-22.4 requires that sample ballots for primary elections be printed in English and Spanish where 10% of a district’s registered voters have Spanish as their primary language. Two other statutes require that primary election ballots and mail-in ballots be, “as nearly as possible,” a “facsimile” of the primary election ballot to be voted at the election.
Plaintiff was a candidate for a district committee seat in Dover Township, Morris County. Because more than 10% of Dover’s registered voters spoke Spanish as their primary language, sample ballots were required to be printed in English and Spanish. Plaintiff contended that the “facsimile” statutes mandated that primary election ballots and mail-in ballots likewise be printed in English and Spanish. Defendants declined to do that, and plaintiff filed suit seeking bilingual ballots both for the election in question and for future contests.
On the Friday before the election was to take place, the Law Division denied plaintiff’s request for an injunction. The judge stated that although the Legislature had amended the statute to require English and Spanish sample ballots in specified circumstances, the Legislature had not done so regarding official ballots. The Law Division “reasoned that if the Legislature intended to change the language requirement for official ballots it would have specifically so provided.”
Plaintiff appealed, and today the Appellate Division reversed. Addressing first the question of whether the case was moot since the election was “long over,” Judge Reisner observed that the case was not moot, since plaintiff had “sought an order requiring the County Clerk to provide bilingual ballots in future elections.” But even if the case had been moot, Judge Reisner said, the panel would address it “because the State election law issue concerns a matter of significant public importance.”
On the merits, Judge Reisner recognized that the several statutes, read together, were ambiguous. Thus, the panel needed to resort to principles of statutory interpretation to reach a result. To do that, she said, the court had to “consider the legislative intent animating the entire statutory scheme of which the specific provision is a part.” Judge Reisner went on to note that “[c]onsidering the statutory scheme as a whole, it is clear that the Legislature has expressed a strong policy interest in protecting Spanish-speaking voters from being disenfranchised,” and carefully noted a number of statutory provisions that embodied that policy. She also cited cases stating that election laws are to be liberally construed in favor of enfranchising voters.”
While defendants relied on the absence of an express statutory requirement for official and mail-in ballots (as opposed to sample ballots) to be printed in English and Spanish, plaintiffs contended that the Legislature was or must be deemed to have been aware of the “facsimile” statutes, and that those statutes required bilingual official and mail-in ballots so that they matched “as nearly as possible” the sample ballot. Plaintiffs also cited the “absurd result” of the Law Division’s ruling, as Judge Reisner summarized:
“[H]aving an official ballot that is only in English defeats the purpose of issuing bilingual sample ballots…. [E]ven if the sample ballot is bilingual, a voter whose primary language is Spanish will then enter a voting booth and be confronted with a ballot printed only in English…. Moreover, because the sample ballot advises voters that it is an exact copy of the official ballot, voters receiving a bilingual sample ballot can fairly expect that the official ballot will likewise be bilingual.”
Judge Reisner stated that “[b]oth sides have colorable arguments to make in this case.” But she concluded that plaintiffs’ argument was correct. “As a practical matter, it makes no sense to provide bilingual sample ballots because voters are not fluent in English, but to expect those same voters to navigate an official balloting process that is English-only. We will not presume that the Legislature intended that result. Rather, we presume that the Legislature, being familiar with its own enactments, would have expected that the “facsimile” language pertaining to sample and official ballots would result in the official ballots mirroring the sample ballots where the Legislature required the sample ballots to be printed in both Spanish and English.” That was unquestionably the right result.
To avoid electoral chaos, the panel made its ruling prospective only. Today’s opinion also rejected other arguments made by plaintiff, including on the ground that some of those arguments had not been raised below. Finally, Judge Reisner observed that although the same sorts of contradictory statutes appear with relation to general election sample and other ballots, the panel was not ruling on general election balloting, since that context was not before the panel.